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On an average day, the services of professional spoken (foreign) and unspoken (deaf spectrum) language interpreters are required in over 600 civil and criminal cases heard before the courts and tribunals in England and Wales. Interpreters do not fulfil an auxiliary or support role. They are an essential component of the English legal system, ensuring equality before the law through non-discrimination and the right to a fair trial by enabling parties to participate in proceedings in a language they understand.
Like other parts of the English legal system, a decade of cuts and outsourcing through austerity measures, on the pretext of reducing costs and increasing efficiency, have seen the quality of the service fall irreparably. However, working with migrant and disabled communities who are already marginalised and silenced in mainstream discourse, the plight of professional interpreters seldom attracts as much interest as professionals working in other areas of the law.
Framework agreement I
Court interpreting was privatised in 2011 through a Ministry of Justice 5-year £90 million framework agreement, delivered by public service outsourcing giant Capita. Prior to this agreement, courts procured interpreters through small local agencies or directly via the voluntary regulators for spoken and unspoken languages.
Under a pre-2011 national agreement, court interpreters were paid “a minimum of £85 for the first three hours at court, and £30 per hour thereafter, with travel time paid at £15 per hour and public transport travel expenses in full, or mileage at £0.25”.
The first framework agreement, which ended in October 2016, saw rates plunge to £16 to £22 an hour “with a minimum fee of just one hour and no payment of public transport charges”; it also introduced a new tier ranking system for qualifications.
Successive ministers have claimed that this contract resulted in the Ministry of Justice spending “£38m less on language service fees”. These unsubstantiated savings could only have been made by slashing the fees paid to interpreters, passed on in large part to the middlemen agencies under the contract, not for any specialist linguistic or legal services, but for having the IT skills to set up a database to centralise bookings.
Unsurprisingly, the majority of qualified and experienced interpreters boycotted the contract from the outset. Many have not returned to the profession. Prior to the first contract in 2011, there were not enough qualified interpreters; this situation remains unchanged.
Framework agreement II
Ignoring criticism of the first framework agreement with Capita, the Ministry rebooted the system in 2016 with a new configuration. Awarding the contracts for spoken and non-spoken languages to different agencies and introducing a quality assurance component gave the current agreement a less monopolistic gloss.
The current 4-year framework agreement, worth £232.4 million, is one of the largest language services contracts in the world. thebigword, runner-up to Capita in 2011, took the lion’s share of the contract with spoken language interpreting and translation in a reported £120 million deal. The current contract also covers other areas of the legal system.
Although thebigword shares the justice sector contract with Clarion (for non-spoken languages) and The Language Shop, providing quality assurance, it has an effective monopoly on public service foreign language interpreting. It is “the only language service provider (LSP) to be listed on all four Government contract frameworks” for other public service sectors, and states “We’re also proud to hold the UK’s biggest public sector interpreting contract with the Ministry of Justice.”
Months ahead of winning the second framework agreement, thebigword underwent a number of high-level changes, including re-registering “as a private limited company (Ltd) from a public limited company (Plc). One key difference between the two legal identities is that an Ltd comes with less stringent disclosure requirements” in February 2016.
Executive Chairman Larry Gould states that the company’s 28.3% increase in revenue in 2018 to almost £76.3 million “can be explained by the full year impact of the Ministry of Justice contract”. Unlike its predecessor Capita, thebigword is reported to have made the framework agreement profitable. However, like Capita, it has used the prestige of being awarded the Ministry of Justice’s language framework agreement to further its growth and reputation in the legal sector, launching a separate legal and justice division in 2018.
Well-known for its low rates of pay to both translators and interpreters, thebigword’s profits from the Ministry of Justice contract are not reflected in its court interpreters rates of £18 to £24 per hour depending on the language, along with a small fee for transport costs. Outside of this framework, thebigword pays interpreters on its NHS and other public service contracts £14 to £17 per hour, which are equally unsustainable and offer no incentive to qualified and experienced interpreters.
Under the current contract, languages are classified as standard languages (41), “languages permitted exceptional qualification requirements’ (languages without DPSI, Diploma in Public Service Interpreting)” (151) and special services (7) for non-spoken languages. The DPSI is the standard qualification required for foreign languages where it exists for them.
For the 151 languages without DPSI, graduate and postgraduate level language qualifications are required along with extensive experience. For many minority languages, no language qualifications exist at all, and training interpreters to work with them is a challenge for international courts as well. An initiative to deal with this situation for professional interpreters in the UK is being offered by DPSI Online to train interpreters working with rarer languages to overcome the skills gap.
Recently updated guidance from the Crown Prosecution Service (CPS) on using interpreters states that interpreters should be NRPSI (National Register of Public Service Interpreters) registered for foreign languages. For deaf court users, the guidance is: “Only registered Sign Language Interpreters or Lip speakers should be used. The Council for the advancement of Communication with Deaf people (CACDP) is the national examining and registration body for sign language interpreters and details of qualified Sign Language.”
Bricks in the wall
Rising profits at the expense of low rates offered to professional linguists makes it hard for thebigword to attract and retain good-quality qualified interpreters. The company has acknowledged that it does not always use qualified interpreters:
Slovak is a standard language.
In early 2019, thebigword sent an email to its interpreters, following The Language Shop’s quality assessment, concerning the basic terminology and grammatical errors its interpreters make, use of the wrong dialect of a language or that they simply cannot communicate adequately in English. It also states that “A lack of expertise in an area should not impede your ability to interpret”.
Rather than invest in qualified interpreters, the company is partly using public funds, under the framework agreement, to invest in education through its partner, the International School of Linguists (ISL), which now offers its own NRPSI-recognised Diploma in Public Service Interpreting (DPSI). Since the 1980s and until 2018, only the Chartered Institute of Linguists (CIoL) offered this qualification. ISL claims that the exam can be taken in over 200 languages whereas the CIoL offers the qualification in several dozen languages and dialects.
The ISL claims that its qualification offers interpreters and public services greater choice but as Oscar Wilde once said, “Imitation is the sincerest form of flattery”. Were thebigword or the ISL truly interested in language skills and development, they would look beyond commercial interests, online teaching and digital platforms to actual needs in the field. Areas such as modern slavery and domestic violence, among others, are fields in which interpreters are very much needed but in which there is a skills and training gap; these are also areas in which cultural and legal differences are more evident.
Is thebigword creating a monopoly here too? Although DPSI preparation courses are available at various further and higher education institutions across the UK, thebigword encourages its linguists to take training courses and the DPSI provided by the ISL. In addition, linguists who fail The Language Shop’s assessment have to do training and acquire qualifications via ISL they must pay for.
As a less prestigious form of interpreting, there is less funding and research for development and training in public service (community) interpreting. Commercial ventures into community interpreting training could have serious consequences on the field and its users.
Quality vs quantity
The 98% success rate required by both language framework agreements is evidenced solely by “datasets provided by the contractor”, and demonstrates the unworkable nature of the framework agreement. The Ministry of Justice considers an unfair trial rate of at least 2% in cases involving deaf and foreign parties to be acceptable.
Like Capita, thebigword has only hit this rate once, in the first quarter of 2018. In that same period, the rate for then 140+ languages without DPSI was 90%, or an interpreter no-show in one out of every ten cases.
The most recent statistics, for the first quarter of 2019 shows that the overall success rate is 97%, and 86% for languages without DPSI. For special services (non-spoken languages), the rate is also currently 97%. “No interpreter available” accounted for 29% (111) of complaints in this period. Quantitative statistics, however, say nothing about the quality of the service. After eight years, the low level of complaints may reflect lower expectations.
A recent parliamentary question to the Ministry of Justice concerning the “number of court cases rescheduled due to problems with interpreting or translating services” reveals that far fewer cases have been adjourned due to interpreter non-attendance than under the previous Capita contract. These data appear to be taken from the complaints information provided by thebigword and Clarion. These statistics may simply show that the courts are so used to interpreter non-attendance and poor quality interpreting that their attendance is often irrelevant.
An incident comes to mind when an Arabic speaking interpreter failed to turn up. A colleague whispered to me that he was fluent in an Arabic dialect very closely associated with the defendant’s. I asked him to interpret for the court for the short time required to formally adjourn. In the retiring room the legal advisor told me my actions were borderline if not misconduct at least putting into jeopardy the impartiality of the court. I told her I’d do it again in similar circumstances where the alternative was further delay and time wasting for all involved.
In addition, according to the latest CPS guidelines, “If the question of competence of the interpreter is raised, the hearing should be adjourned, so that it can be resolved.”
Complaints are to be made to The Language Shop, the contract’s quality assessor, which also holds the register of Ministry of Justice approved linguists (interpreters and translators). The Language Shop is supposed to produce annual audits, yet there is no public evidence that any have been produced.
In a March 2019 article, Romanian caseworker and NRPSI-registered interpreter Matei Clej reported on some of the issues that arose from poor interpreting in a rape trial (he was representing the client, not interpreting for him):
On occasions during his evidence my client answered “I don’t understand.” But instead of simply translating “I don’t understand”, the interpreter reframed the question by conferring with the client several times to get an answer. In addition, the interpreter interpreted the defendant saying he ‘rejected’ the complainant as ‘pushed’ which in a rape trial could be a potentially very damaging error.
Defendants, advocates and even judges may not be aware of how such errors in interpretation can contribute to the wrong verdict.
He further states that “Non-English speaking defendants already face many disadvantages in criminal trials and so having the court interpreter interpret what is said accurately is absolutely vital”.
Similar concerns have been expressed by the National Union of British Sign Language Interpreters (NUBSLI) with respect to Clarion and deaf court users. These include the disincentive to professional interpreters leading to inexperienced interpreters being used, the lack of independent monitoring of standards and a monopoly by just the one agency. This is in addition to the safeguarding risks and the poor training offered. The NUBSLI also flags up the lack of transparency.
Outside the courts
Under the current contract, language services are also now provided to a number of other Ministry bodies, including the Legal Aid Agency, the Law Commission, prisons and probation services, and the Salvation Army. These areas of the justice sector are also affected by the current poor standard of interpreter and translator provision. In some areas, there has been a shift away from face-to-face interpreters to telephone interpreting. In some prisons and detention centres, this has meant a higher rate of interpreter use but quality issues remain.
One of the strongest criticisms of the current language framework agreement over the past year came from former Prisons and Probation Ombudsman for England and Wales Stephen Shaw CBE in his report on the welfare situation in immigration detention centres. In his findings, he found that while the use of thebigword telephone interpreting services had increased the quantity of provision, “quality remains an issue”. His recommendations to the government included: “The Home Office and Ministry of Justice should conduct a review of the quality of interpreter services in IRCs [immigration removal centres].”
A 2017 blog post by probation officers provides concerns about the quality of interpreting under the current contract and the use of telephone interpreters. One cites that telephone interpreting is unsuitable for “complex emotional work” such as domestic violence cases.
Another probation officer points out that: “much important communication is lost when we are not face to face with the people we are speaking to. And this is being insisted on in a situation when good communication is already hampered by language and possibly cultural differences.”
Although thebigword’s technological strength provides the necessary platforms for this service easily, quality remains an issue, one that technology cannot address in the sensitive field of the administration of justice.
Has outsourcing has its day?
The current contract started in October 2016 for a 4-year period with an optional extension of three further periods of one year. Thus, as the October 2020 renewal date looms and with no reported tenders for a third Ministry of Justice language framework agreement, it would appear that the Ministry has decided to extend the contract, for at least one more year, for all of its current contractors.
In May, it was announced that large parts of the probation service would be renationalised by 2021. However, after just five years, there are challenges in restoring the service to the public sector, which include “the severe shortage of qualified probation officers. Private providers have been absorbing losses since the contracts began, so the MoJ will need to increase investment if it wants to bring the service in-house”, as well as paying “staff correctly”.
Following the most recent threat of strike action by the criminal bar, the CPS made a deal with criminal barristers to improve the low fees paid to them which are driving professionals away from the sector. The provision of legal aid, including the fees paid to practitioners is currently being reviewed until 2020.
Since the few breadcrumbs tossed in the direction of court interpreters in 2013 by the Ministry, it has made no efforts to reconcile or listen to the concerns of the professionals who actually provide the service.
Bound by domestic and international legal obligations to ensure the right to a fair trial, which includes access to interpreting and translation services where language is an obstacle, the Ministry believes that its framework agreement makes it compliant with the transposition of the 2010 EU Directive on the right to interpretation and translation in criminal proceedings. However, the physical presence of an interpreter does not necessarily ensure the right to a fair trial or that the proceedings have been understood.
While the Ministry claims it cannot afford to pay key justice sector staff properly, it is investing heavily in technology. The Ministry claims to have saved £2 billion over the first half of this decade through its broad sector cuts, and at the same has also pushed ahead with a £1 billion plan to digitalise the court system, including the increasing use of video links in various court hearings. These include some that involve the use of interpreters, without much consideration of how this affects interpreter-mediated hearings.
thebigword is well placed to meet the needs of the Ministry: “Our financial strength drives us to be the world’s fastest growing interpreting-centric LSP in the world and we are projected to accelerate even further with our developments in technology and innovation.”
However, “Even when all this digitisation works it is still questionable as to whether, overall, it actually enhances the quality of justice.” Indeed, “The greater convenience and (at least theoretical) efficiency of computerisation, comes at the cost of far greater vulnerability”. Court users who rely on interpreters are already more vulnerable.
The government’s experiments with outsourcing and technology have failed to improve quality. Quantity is also hindered by the fact that there are simply not enough qualified interpreters, even if there many people who speak multiple languages with varying levels of fluency. Even if the Ministry decides to run the current contract into its three years of annual optional extensions, at some point, it will have to start thinking about the third instalment of the language framework agreement.
Alternatively, it could try listening to professional interpreters. Almost a decade after initiating this chaos in the courts for foreign and sign language users, the time should have come for it to consider letting the framework agreement go altogether.
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